Newsday – by GUS GARCIA-ROBERTS
Even as Nassau County Police Department investigators determined that former officer Anthony DiLeonardo committed four felonies during his 2011 off-duty shooting of an unarmed cabdriver, a special grand jury convened to investigate the incident expired last year with no criminal charges brought, Newsday found.
There were dozens of potential witnesses to the shooting and its aftermath, including medical personnel, civilians and law enforcement officials from both Nassau and Suffolk counties. Newsday recently interviewed seven of the incident’s central figures, or their attorneys, and all said they had not been asked to testify before the grand jury, which was set to expire in January 2014.
A spokesman for Suffolk County District Attorney Thomas Spota, whose office maintained jurisdiction over the Huntington Station incident, confirmed Newsday’s findings and acknowledged for the first time that Spota allowed the special grand jury to expire last year without key witnesses being called. The spokesman, Robert Clifford, would not say whether the special grand jury called any witnesses.
In an emailed statement, Clifford said, “no follow up questions will be entertained.”
Clifford’s statement blamed the special grand jury’s inactivity on the shooting victim’s unwillingness to testify, the DA office’s inability to obtain Nassau and Suffolk County police internal affairs reports concerning the incident and a state law granting immunity against prosecution to grand jury witnesses.
“At every turn we were thwarted in our attempt to move forward,” Clifford emailed in a statement to Newsday.
The special grand jury could have not only shed light on DiLeonardo’s shooting of cabdriver Thomas Moroughan, who survived two bullet wounds from the officer’s .38-caliber Smith & Wesson, but also answered questions concerning how Long Island’s two largest law-enforcement agencies handled subsequent investigations into the shooting.
Nassau shooting investigators and Suffolk homicide detectives justified DiLeonardo’s use of deadly force with nearly identical language, including with a since-disproven statement made by the officer and an alleged confession obtained from Moroughan, who was hospitalized and medicated at the time. Moroughan later said he never made the confession, and he has filed a $30 million lawsuit alleging that Nassau and Suffolk County’s police departments conspired to cover up DiLeonardo’s illegal shooting by claiming Moroughan had tried to run down DiLeonardo with his Toyota Prius cab.
The special grand jury also might have probed how more than three dozen police officers at the scene of the shooting and hospital afterward did not report noticing that DiLeonardo had been drinking despite medical professionals noting that he was slurring his words and smelled of alcohol.
And had the grand jury brought charges against DiLeonardo, it would have highlighted the fact that Spota did not convene the proceedings until Newsday published an expose of the shooting more than two years after the incident.
At Newsday’s request, five legal experts reviewed the facts from the case and the explanations from Spota’s office as to why the special grand jury was not pursued. Each disagreed with the idea that Spota could not pursue the case, and all but one agreed with an expert’s suggestion that Gov. Andrew M. Cuomo appoint a special prosecutor to investigate the incident.
“Spota has had almost four years to prosecute this case, but he hasn’t,” said Touro College law professor Peter Davis, who has previously probed police misconduct as special counsel to a Suffolk County Legislature committee. “If Spota is not going to prosecute this, then someone ought to ask the governor … to appoint the state attorney general to supersede Spota and take his place.”
“This case cries out for a special prosecutor,” said James A. Cohen, associate professor of law at Fordham University. “It impacts on the conduct of the police, and it impacts on the conduct of the DA’s office.”
“You’ve got several police officers implicated, you’ve got serious misconduct, and the district attorney has really slipped it under the rug,” said Pace Law professor and former Manhattan prosecutor Bennett Gershman. “Justice needs to be done.”
Eugene O’Donnell, a John Jay College of Criminal Justice professor and former NYPD police officer and prosecutor in Queens and Brooklyn, said the responsibility of pursuing this case belonged only to Spota, not to an unelected special prosecutor.
But O’Donnell added that it’s a “problematic part of this system” that Spota could quietly allow the special grand jury to expire without public explanation.
“People should not be left to guess what went on in a high-profile case like this,” O’Donnell said. “The greatest possible disclosure under the law should be made, and if the DA fouls up so badly, he should just have to answer to the electorate in the next election.”
Spota did not issue a special grand jury report, which the district attorney has previously produced following proceedings that probed issues of public importance. On at least three separate occasions after the special grand jury was set to expire last year, Spota would not respond or declined Newsday’s request for an update on its status. Spota also did not respond to a request to be interviewed for this story. (Clifford emailed three separate statements that are published in their entirety on newsday.com)
In an interview with News 12 Long Island on Wednesday, Spota called the notion that he didn’t proceed because he wanted to hide police misconduct, “the furthest thing from the truth.” He added that he “absolutely” believed DiLeonardo was guilty of a crime and that had Moroughan’s then-girlfriend, who was in the cab’s front passenger seat, not ducked, “she would have been shot and it probably would have been potentially a fatal shot.”
Spota did not contest the legal experts’ opinion that this case should be taken over by a governor-appointed special prosecutor.
“Let the governor do it then,” Spota said. “In my view, there should be a prosecution in this case. If the attorney general can be more successful than I have been, God bless him.”
Unwilling witnesses
The Nassau County Police Department terminated DiLeonardo’s employment following a disciplinary hearing in March 2014, more than three years after the shooting and three months after court records indicate the special grand jury ended without filing charges against him.
Newly obtained records from the confidential three-day hearing — in which the Nassau Internal Affairs Bureau sergeant who prepared the report on the Moroughan shooting was the only witness against him, and DiLeonardo did not testify on his own behalf — show a department inquiry found that he had committed four felonies and a misdemeanor on the night he shot Moroughan.
The violations of state penal law are stated in a document listing the “charges and specifications” against DiLeonardo. They include two counts of second-degree assault and one count each of first-degree reckless endangerment and second-degree criminal mischief. The department also found that he had committed reckless driving, a misdemeanor.
Clifford’s emailed statements described obstacles that stymied his office in pursuing those or other charges against DiLeonardo. Chief among the difficulties was the stated unwillingness of Moroughan and Kristie Mondo, the cabdriver’s then-girlfriend, to cooperate with prosecutors, Clifford said.
Moroughan’s attorney, Anthony Grandinette, said his client expressed an unwillingness to testify before the grand jury because he does not trust a law-enforcement system that first victimized him and then tried to frame him for crimes he didn’t commit. Grandinette also cited “recent examples of the ease in which prosecutors can manipulate the outcome of grand jury proceedings to favor police, irrespective of the weight of the evidence against them.”
Clifford said the district attorney’s office was also blocked by a confidentiality stipulation that sealed records, including Nassau’s and Suffolk’s internal affairs reports in Moroughan’s federal lawsuit. According to Clifford, his office filed motions to unseal the reports and a federal magistrate denied those requests.
However, Eugene Corcoran, district executive of the federal court for the Eastern District of New York, said that Spota’s application concerning the documents was rejected only due to a “procedural defect” and that prosecutors did not bring the issue to the court again despite being given another opportunity to do so.
That inability to obtain information essentially left Suffolk’s prosecutors in the dark, according to Clifford. Since New York law grants immunity to grand jury witnesses who are subpoenaed to testify — which is called transactional immunity — prosecutors would have had to “guess” at which witnesses to subpoena, running the risk of mistakenly conveying immunity, Clifford said.
“here was simply no way to proceed in the grand jury,” Clifford wrote.
Pace Law professor Gershman reviewed Spota’s explanations and said they are not accurate.
“He’s basically saying that they’re an amateur organization,” Gershman said. “This isn’t a picture of a prosecutor’s office that I’m accustomed to seeing, and to me it reinforces the idea that when you’re dealing with cops, different rules apply.”
John Jay professor O’Donnell acknowledged that prosecuting a police officer when there’s an unwilling victim is difficult. But, O’Donnell said, the facts of the DiLeonardo case point to a need for reforming the system.
“The police have broad power, but you really do have to worry that you’ve given people carte blanche at some point, and that there are no checks for their actions,” O’Donnell said.
Pace Law professor Randolph McLaughlin said he did not consider indicting DiLeonardo to be a difficult task.
“It’s black and white — there’s no gray here,” McLaughlin said. “A first-year-law student could secure an indictment in this case.”
Police shield records
The actions of DiLeonardo and other officers on the morning of Feb. 27, 2011 typically would have never become public. Police departments in New York exercise the state’s 50-a law to shield records used to evaluate individual officers’ job performance, including internal affairs records. However, the law specifically notes that it “shall not apply to any district attorney … in the furtherance of their official functions.”
But for public access, even litigation often doesn’t shake secrets loose. In the ongoing federal lawsuit, attorneys for Moroughan, DiLeonardo and Nassau and Suffolk counties agreed to a confidentiality stipulation that allowed the parties in the lawsuit to view the internal affairs records concerning the shooting while keeping them hidden from the public, a common practice in civil cases alleging law enforcement misconduct on Long Island.
In the case of Moroughan, however, a Newsday reporter discovered that the 105-page Nassau County Internal Affairs report, along with hundreds of pages of supporting documents, had been accidentally uploaded to the publicly accessible online court file.
The report revealed that investigators found DiLeonardo faced no danger when he broke Moroughan’s nose with his gun and then shot him in the chest and arm as Moroughan attempted to drive away.
Nassau’s Internal Affairs investigation was unusual in that it did not begin until more than three months after the shooting and relied on information from reports prepared by Suffolk County agencies, including materials provided by Spota’s own investigation into Moroughan’s shooting and arrest.
The Internal Affairs findings contradicted earlier conclusions about the incident, including the findings of high-ranking members of a Nassau Police Department “shooting team” and veteran Suffolk homicide detectives who justified DiLeonardo’s actions. Those conclusions resulted in Moroughan’s arrest on charges of felony assault and misdemeanor reckless endangerment.
In separate reports filed by the Nassau shooting team and the sworn statement prepared for the hospitalized Moroughan by Suffolk homicide detectives Ronald Tavares and Charles Leser, DiLeonardo was said to have opened fire because he feared for his life as Moroughan revved his engine and drove his cab at him.
Moroughan was on morphine for the pain of two gunshot wounds and was allegedly calling for an attorney before signing the statement, according to the Internal Affairs report.
Since being made public, the circumstances surrounding Moroughan’s disputed confession have led defense attorneys representing clients in homicides worked by Tavares and Leser to challenge the veracity of other confessions they secured, and a judge has vacated at least one such conviction in Suffolk County as a result.
DA office’s initial probe
Although Clifford maintains that the Suffolk DA’s office did not have the information to move the grand jury forward, it was Spota’s own investigation into the shooting that first called into question the version of events casting Moroughan as the aggressor.
Within a week of the shooting, Spota’s office took over the criminal investigation from the Suffolk homicide unit. A Suffolk County crime lab analyst who reconstructed the event found that DiLeonardo would not have been able to pull his gun from an ankle holster in a split second while the taxi drove at him, as the officer claimed, and must have drawn his weapon before the confrontation began. The analyst also noted the nearly silent operation of Moroughan’s hybrid cab, casting doubt on the reports of him revving the engine before driving at DiLeonardo.
Suffolk district attorney’s office special investigators interviewed DiLeonardo, his fellow off-duty NCPD officer Edward Bienz and their two female companions that night, according to the Nassau Internal Affairs report. Both officers admitted they had been barhopping before the incident, with DiLeonardo telling Spota’s investigators that he had consumed eight to 10 drinks before encountering Moroughan.
According to Nassau’s Internal Affairs report, Spota’s special investigator said “that their investigation determined the shooting was unjustified causing the Suffolk County district attorney’s office to dismiss all charges against Moroughan.”
Raphael Pearl, the prosecutor who moved to dismiss the charges against the cabdriver in June 2011, didn’t state in court that Spota’s office had found the shooting unjustified. Pearl instead cited “conflicting evidence,” including that Moroughan “withdrew from the confrontation” before trying to drive away and “evidence that the officers involved had been consuming alcoholic beverages before the shooting.” Pearl said the findings had been shared with Nassau County’s Internal Affairs Bureau.
Special grand jury
DiLeonardo was still employed by the department in June 2013 when Newsday published a story on the findings of the previously confidential Internal Affairs report. Within three weeks, Spota convened the special grand jury.
The DA’s office ultimately decided not to subpoena Moroughan and Mondo, Clifford said, citing office policy to give deference to victims and that “undoubtedly we would have been excoriated for re-victimizing Mr. Moroughan.”
Moroughan had requested that he and Mondo not be subpoenaed to the grand jury through a letter sent by his attorney, which said that he “feels skeptical regarding this process almost two and one half years after the fact.”
O’Donnell, the John Jay professor and former police officer and prosecutor, said an unwilling victim can be “insurmountable” to a grand jury investigation.
“You could force him to testify,” O’Donnell said, “but that makes a complicated case all the more complicated.”
But other legal experts said that in a case of this magnitude, getting to the truth of the event outweighed the desires of the victim.
“There’s absolutely nothing to stop Spota from putting Moroughan and his girlfriend in the grand jury,” Touro Law professor Davis said. “This is a cover-up of serious misconduct in both counties of Long Island and it’s the district attorney’s job to prosecute.”
Pace Law professor Gershman called Spota’s deference to Moroughan’s request “nonsense.”
“Prosecutors don’t act that way, especially in a case involving wanton and deliberate misconduct by cops,” Gershman said.
Although the Suffolk district attorney’s office respected Moroughan’s desire to avoid testifying, a Suffolk prosecutor used the empaneling of the special grand jury to resist producing investigative records requested by Moroughan’s attorney to aid his federal lawsuit.
Spota’s office quoted legal precedent concerning grand jury privacy when it argued in a court filing that it should no longer be forced to turn over any records due to the new proceedings.
“Because the Grand Jury is currently investigating the shooting, there is a ‘predominant secrecy-related interest,’ ” wrote Assistant District Attorney Anne E. Oh, “and that is the ‘need to encourage all witnesses to step forward and testify freely without fear or retaliation.’ ”
Dozens of potential witnesses
Even after being informed of Moroughan’s unwillingness to cooperate, Spota publicly stated that “based upon the facts and circumstances of the case, and even more importantly, the failure of the Nassau County Police Department to follow our recommendation that they discipline or remove the police officers involved in the incident, we have requested a special grand jury be empaneled, we will consider all of our options and this investigation will move forward.”
More than 70 individuals are named in Nassau’s Internal Affairs report, including multiple 911 callers who heard or saw the shooting, police or union officials who reported to the scene or the hospital afterward, medical personnel, Spota’s investigators, the Suffolk crime scene analyst and the Nassau sergeant and her colleagues who prepared the report itself.
Newsday initially sought response from Spota’s office after finding that several key witnesses had not been called to testify: DiLeonardo, Moroughan, his then-girlfriend Mondo, three witnesses who called 911 on the night of the shooting — including an eyewitness who provided key testimony for the Internal Affairs investigation — and a law enforcement official.
DiLeonardo’s attorney, Bruce Barket, said his client would have “strongly considered” testifying in the special grand jury. In New York, targets of a grand jury can request to testify in their own defense, though they are expected to waive immunity — a point Barket would not address.
Clifford said Barket suggested he would not waive immunity by writing in a letter to Spota’s office that should prosecutors decide to grant Moroughan immunity in exchange for his testimony, DiLeonardo should be given the same treatment.
“At no time by any method whatsoever did any attorney representing Officer DiLeonardo indicate he would waive immunity and testify before the grand jury,” Clifford wrote in a statement.
In a recent interview, Barket maintained that DiLeonardo only opened fire on Moroughan because he feared for his life and that the Nassau Internal Affairs report was the work of an investigator inexperienced in probing police shootings.
“My theory on why Officer DiLeonardo wasn’t charged was that he didn’t commit a crime,” Barket said.
Sealed reports
Compounding prosecutors’ difficulties, Clifford said, was that the Nassau Internal Affairs report, and a separate Internal Affairs report produced by the Suffolk County Police Department, were sealed in a confidentiality agreementbetween attorneys for Moroughan, DiLeonardo and both counties and signed by U.S. Magistrate Judge A. Kathleen Tomlinson.
Clifford wrote that Suffolk prosecutors “made a motion in federal court to unseal” the reports for grand jury use but were opposed by Moroughan and the Nassau County police officers.
“We lost,” Clifford wrote, adding that a federal magistrate also denied a motion to reargue. Clifford declined Newsday’s request to view those motions.
An August 2013 letter to Tomlinson, which is filed on the public docket, shows a Suffolk prosecutor wrote that Spota’s office had previously “submitted a letter regarding our intent to serve grand jury subpoenas on the Nassau County and Suffolk County Police Departments” for their internal affairs reports. The prosecutor wrote again in December 2013 that Spota’s office had “received neither a response … nor any papers with respect to any opposition regarding our letter” and informed the judge that the special grand jury term would expire in less than a month.
After reviewing records in the case, Corcoran, the district executive of the Eastern District, said Tomlinson never ruled on the application “because of a procedural defect in the application itself.”
“Judge Tomlinson has given the SCDA the opportunity to bring the issue to the court again but they have not done so,” Corcoran said.
Spota could have extended the term of the special grand jury by simply asking a local administrative judge to do so, according to New York State Office of Courts Administration spokesman David Bookstaver.
Clifford said the sealed internal affairs reports also barred prosecutors from subpoenaing the sergeant who wrote Nassau’s version for her testimony, or using as a reference Newsday’s copy of that report, key portions of which the newspaper uploaded online in 2013.
“Without the internal affairs file, there was simply no way for us to determine which officers, if any, to call to the grand jury and immunize, and which officers we could not call to the grand jury for fear of giving them transactional immunity for any crime they may have committed,” Clifford stated.
Legal experts interviewed by Newsday found it unusual that Spota involved the federal magistrate rather than requesting the reports from the departments involved. Criminal grand juries are typically given precedence over civil matters, and there was no legal reason why Spota’s office could not have used Newsday’s online copy to guide their subpoenas, experts said.
“Civil litigation should never be a reason to preclude a full and thorough investigation by a grand jury,” Pace Law professor Gershman said.
“The only person who can’t see it is the DA,” John Jay professor O’Donnell said of the Internal Affairs report. “It’s a little disingenuous.”
“Here’s the easy answer: If the DA of Suffolk County wanted that report, he could get it,” Pace Law professor McLaughlin said.
This is were America needs a civilian oversight board for people to call. As infernal affairs does not take complaints about there fellow cops in America. Some place it is kept on record. And when they get a complaint and go to file it. They see the officers file is getting full. So they go out and investigate officers who are problems. And why they are problems. And have the power to fire a office who is a disgrace to the uniform. Or allow them to resign before the investigation is compleat. With a honest board it does work. And when they will even go so far as to ask in the paper has others complaints against officers that come to there atention. And walk the officers area and ask what is thought of them. Works here. Very good police with a board to oversee them. Not like America were the oversite boards can only look at what the police give them to look at and not ask a question about it. Big difference there over here!